U.S. Supreme Court schedules March argument sitting

On February 1, 2021, the Supreme Court of the United States (SCOTUS) released its March argument calendar for the 2020-2021 term. The court will hear seven hours of oral argument in nine cases between March 22 and March 31.

So far, the court has agreed to hear 62 cases during its 2020-2021 term.

  • March 22, 2021
    • Cedar Point Nursery v. Hassid
  • March 23, 2021
    • United States v. Cooley
  • March 24, 2021
    • Caniglia v. Strom
  • March 29, 2021
    • Azar v. Gresham (Consolidated with Arkansas v. Gresham)
  • March 30, 2021
    • Transunion v. Ramirez
  • March 31, 2021
    • NCAA v. Alston (Consolidated with AAC v. Alston)

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Pennsylvania Secretary of the Commonwealth to resign after error in constitutional amendment process

Pennsylvania Secretary of the Commonwealth Kathy Boockvar (D) is expected to resign on February 5, 2021, after her office failed to advertise a constitutional amendment as the state constitution requires. Voters could have decided the constitutional amendment at the election on May 18, 2021, but the two-session process will need to restart. The earliest the amendment could be referred to the ballot is now May 16, 2023. 

The constitutional amendment would have created a two-year period in which persons can file civil suits arising from childhood sexual abuse that would otherwise be considered outside the statute of limitations. A 2018 grand jury report that investigated child sexual abuse in the Roman Catholic Church recommended the two-year litigation window.

A constitutional amendment must be approved at two successive sessions of the Pennsylvania Legislature. During the 2019-2020 legislative session, both legislative chambers approved the amendment. It was reintroduced during the 2021-2022 session, and the state House re-approved it on January 27. 

The Pennsylvania Constitution (Section 1 of Article XI) required Secretary of the Commonwealth Kathy Boockvar (D) to publish the constitutional amendment in at least two newspapers in each of the state’s 67 counties during each of the three months before the general election following approval in the first legislative session (November 3, 2020). On February 1, 2021, the Pennsylvania Department of State announced that officials did not advertise the constitutional amendment as required. The department’s press released said, “While the department will take every step possible to expedite efforts to move this initiative forward, the failure to advertise the proposed constitutional amendment means the process to amend the constitution must now start from the beginning.” 

Gov. Tom Wolf (D), in announcing Boockvar’s resignation, said, “The delay caused by this human error will be heartbreaking for thousands of survivors of childhood sexual assault, advocates, and legislators, and I join the Department of State in apologizing to you. I share your anger and frustration that this happened, and I stand with you in your fight for justice.” State Rep. Jim Gregory (R-80), one of the amendment’s legislative cosponsors in 2019, responded, “The gravity of this ‘error’ is of the magnitude that the secretary’s resignation will not be enough for the victims. I do not want to believe that this is willful misconduct on the part of someone, but I will need to be shown that is not the case.”

Pennsylvania is not the only state to miss a constitutionally required advertisement period for a constitutional amendment in recent years. In 2019, Iowa Secretary of State Paul Pate (R) said that his office failed to report two constitutional amendments that the 86th Iowa General Assembly (2017-2018) approved in 2018. This meant those amendments couldn’t go on the 2020 ballot and the process had to start over. One of those amendments, a measure to add a right to firearms to the state constitution, was certified for the 2022 ballot on January 28.

Like the Pennsylvania Constitution, the Iowa Constitution required notifications of the constitutional amendments to be published at least three months before the general election following approval in the first legislative session. Unlike Pennsylvania, the Iowa Constitution doesn’t specify who needs to publish the amendment. Rather, it is set in statute. In response to the error, the Iowa Legislature passed a bill to make the state legislature, rather than the secretary of state, responsible for publishing proposed constitutional amendments passed in one legislative session.

Since the Pennsylvania Constitution specifically requires the secretary of the commonwealth to publish amendments, a constitutional amendment would be needed to pursue a similar policy change as Iowa.

Thirty-six state constitutions have a publication requirement for proposed constitutional amendments. Most require public notice prior to the election at which voters are to decide a constitutional amendment.

In six states (out of 13) with a two-session process for legislatively referred constitutional amendments, there are constitutionally mandated publication requirements in between approval in the first legislative session and the second legislative session. Those states are Iowa, Nevada, New York, Pennsylvania, Tennessee, and Wisconsin.

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Iowa to vote in 2022 on adding right to own and bear arms to state constitution

Voters in Iowa will decide in 2022 whether to add a right to own and bear firearms to the Iowa Constitution and require strict scrutiny for any alleged violations of the right brought before a court.

The amendment was certified for the ballot on January 28, 2021, after having passed both chambers of the legislature. To put a legislatively referred constitutional amendment before voters, a simple majority vote is required in both the Iowa State Senate and the Iowa House of Representatives in two legislative sessions with an election for state legislators in between. Every two years, half of the state senators and all of the members of the state House are up for election.

This amendment was approved as Senate Joint Resolution 18 during the 2019-2020 legislative session and required approval by both chambers of the legislature again in the 2021-2022 session.

SJR 18 was introduced on February 21, 2019. On March 13, 2019, it was approved by the Senate in a vote of 33 to 16, passing along party lines (with Republicans in favor and Democrats opposed) except for one Democratic senator, Rich Taylor (D-42), who voted yes. The House approved the measure on the same day along party lines.

The amendment was introduced as Senate Joint Resolution 7 in the 2021-2022 legislative session and was approved on January 28, 2021, along party lines with all Republicans voting in favor and all Democrats opposed.

Amendment sponsors originally intended to pass the bill during the 2017-2018 and 2019-2020 sessions to place the question on the 2020 ballot, but a bureaucratic oversight resulted in the amendment process needing to start over again, meaning the bill needed to be passed in the 2019-2020 and 2021-2022 legislative sessions to appear on the 2022 ballot.

The Iowa Constitution requires notifications of any proposed constitutional amendments passed in one legislative session to be published at least three months before the general election for the next legislature—November 2018 in this case. Iowa Secretary of State Paul Pate (R) said that his office failed to report constitutional amendments that the 86th Iowa General Assembly (2017-2018) approved in 2018. Because of the oversight that resulted in the amendments not being published, the amendment process had to be started over again.

Republican Iowa legislators argued that the amendment was necessary because Iowa is one of six states without a constitutional right to keep and bear arms. Amendment sponsor Rep. Steven Holt said, “The right to someone’s own life and the pursuit of their own happiness, their own destiny — life, liberty and the pursuit of happiness — cannot be separated from the right to defend their life, hence the fundamental right to keep and bear arms in our Second Amendment.” Regarding the strict scrutiny provision, Holt said, “If current or future laws are narrowly tailored to advance a compelling government interest regarding this fundamental individual right, they will be safe. If they do not fit that category, they will not be safe and they should not be on the books.”

Democratic Iowa legislators argued that the amendment could negate state laws such as permit-to-carry requirements and the ban of firearm ownership for felons. Sen. Kinney (D) said, “Not many of you have ever had to sit and look down the barrel of a gun. I have, on a number of occasions. When you are placing strict scrutiny into the Constitution, you’re going to be diminishing our laws that are on the books. To me, this is going to make law enforcement more dangerous.” 

Forty-four states have a right to bear arms in their constitutions. Six states— California, Iowa, Maryland, Minnesota, New Jersey, and New York—do not.

The House also passed House Joint Resolution 5 in a vote of 59-41 on January 27, 2021. HJR 5 would amend the constitution to state that Iowa does not “recognize, grant, or secure a right to abortion or require the public funding of abortion.” All 41 House Democrats voted against the bill. Of 59 House Republicans, 55 voted in favor, three voted against, and one was absent or not voting. The measure could appear on the 2024 ballot if it is approved by the Senate (where Republicans hold a 32-18 majority) during the current session and passed by both chambers of the legislature again in 2023 or 2024.

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Delaware legislature amends state constitution to prohibit discrimination according to race, color, national origin

On January 28, 2021, the Delaware House of Representatives approved Senate Bill 31 in the final step to amend the state constitution to add a prohibition on discrimination according to race, color, and national origin to the Delaware Bill of Rights.

Unlike any other state, the Delaware State Legislature can amend the constitution without a vote of the people. To amend the state constitution, an amendment requires a two-thirds vote of each chamber in two consecutive sessions of the legislature. The amendment does not require the governor’s signature before becoming effective.

The amendment was first introduced as Senate Bill 191 in February 2020. The Delaware State Senate approved the amendment unanimously on June 16, 2020. The Delaware House of Representatives also approved the amendment unanimously on June 25. The amendment was introduced in the 2021 legislative session on January 12, 2021, as Senate Bill 31. It was approved unanimously again on January 21 by the state Senate and on January 28 by the state House.

The amendment adds “race, color, national origin” to section 21 of Article I of the Delaware Constitution. Section 21 was added to the Bill of Rights in 2019 by House Bill 1. With the recent amendment, the section reads: “Equality of rights under the law shall not be denied or abridged on account of race, color, national origin, or sex.”

The Delaware constitution can also be amended through a constitutional convention. The state legislature can refer the question, “Shall there be a Convention to revise the Constitution and amend the same?” to statewide ballots via a two-thirds vote in each chamber. If the ballot question receives a simple majority vote, then there will be a convention.

In the other 49 other states, the legislature must refer proposed constitutional amendments to the ballot for voter approval. The states have varying requirements for constitutional amendments originating in the legislatures. Some have multiple different processes with separate sets of requirements:

  • Ten states allow a referred amendment to go on the ballot after a majority vote in one session of the state’s legislature.
  • Nine states allow a referred amendment to go on the ballot after a 60% supermajority vote in one session of the state’s legislature.
  • Seventeen states allow a referred amendment to go on the ballot after a two-thirds (66.67 percent) supermajority vote in one session of the state’s legislature.
  • Fifteen states, including Delaware, have a two-session process for proposed constitutional amendments.
  • Four of those states (Connecticut, Hawaii, New Jersey, and Pennsylvania) have an either/or system: a proposed amendment must be passed by a simple majority in two separate legislative sessions, or by a supermajority vote of one session.

A full list of the different methods state legislatures can amend their constitutions can be found here: https://ballotpedia.org/Legislatively_referred_constitutional_amendment

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Portman becomes fourth senator to announce he won’t seek re-election in 2022

On Jan. 25, Sen. Rob Portman (R-Ohio) announced that he would not seek another six-year term in the Senate when his term expires in 2022.

In his statement announcing his decision, Portman said, “I am really looking forward to being home in Ohio full time, seeing family and friends more, and getting back to the private sector, including being able to be more involved in the community and in our family business. And I plan to stay involved in public policy issues.”

Portman was first elected to the Senate on Nov. 2, 2010. Prior to serving in the U.S. Senate, Portman served multiple roles in President George H.W. Bush’s (R) administration, represented Ohio’s 2nd Congressional District in the U.S. House from 1993 to 2005, and served as U.S. Trade Representative and later as Director of the Office of Management and Budget in Bush’s administration.

As of January 2021, three incumbent U.S. Senators have also announced they will not be running for re-election in 2022: Sen. Richard Burr (R-N.C.), Sen. Ron Johnson (R-Wis.), and Sen. Pat Toomey (R-Pa.).

Between 2011 and July 2020, Ballotpedia tracked 243 retirement announcements from members of the U.S. House and Senate. January had seen the highest number of retirement announcements of any month at 45. Thirty-one of those took place during election years and 14 during odd-number years. During odd-number years, when no regular congressional elections were held, the highest number of retirements—24—had been announced in November.

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U.S. Census Bureau says it will deliver apportionment data by April 30, redistricting data after July 31

On January 27, 2021, Kathleen Styles, an official at the U.S. Census Bureau, announced at a National Conference of State Legislatures event that the bureau would release its final apportionment report by April 30, 2021. Styles also said the bureau hoped to release detailed redistricting data after July 31, 2021.

Census results are used to determine congressional apportionment (i.e., how many seats in the U.S. House of Representatives a state has). Article I, Section 2, of the U.S. Constitution requires that congressional representatives be apportioned to the states on the basis of population. Consequently, a state may gain seats in the U.S. House if its population grows or lose seats if its population decreases, relative to populations in other states. Census data also informs redistricting efforts at both the congressional and state legislative levels.

The bureau originally planned to deliver its final apportionment report by December 31, 2020, and redistricting data by March 31, 2020. The coronavirus pandemic complicated counting efforts, thereby delaying the delivery of this data. It is not yet clear precisely how these delays will affect state-specific redistricting procedures and deadlines.

In other redistricting and reapportionment news, on January 20, 2021, President Joe Biden (D) issued an executive order directing the Secretary of Commerce to include in the final apportionment report the “tabulation of total population by State that reflects the whole number of persons whose usual residence was in each State as of the designated census date in section 141(a) of title 13, United States Code, without regard to immigration status.” This effectively overturned former President Donald Trump’s (R) earlier directive to the contrary.

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California Supreme Court upholds removal of judge following sexual misconduct charges

On Jan. 27, the California Supreme Court declined to hear an appeal by Jeffrey Johnson, a former justice of the 2nd District Court of Appeal Division 1. The state Commission on Judicial Performance removed Johnson from office, effective July 2, 2020, after charging him with nine counts of misconduct.

The charges against Johnson included sexual harassment, inappropriately touching a female justice, and harassing California Highway Patrol officers, attorneys, and female court personnel. The alleged misconduct dated to 1999, when Johnson served as a federal magistrate judge.

In response to the court’s decision not to hear the appeal, Paul S. Meyer, an attorney for Johnson, said, “This decision deprives the public of a diverse jurist who is universally acknowledged to be a brilliant and exceptionally fair judicial officer.”

Johnson was appointed to the California Second District Court of Appeal in 2009 by Gov. Arnold Schwarzenegger (R). Before serving on the court, be was an assistant U.S. attorney for the Central District of California and a U.S. magistrate judge.

Julie Vargas sworn in to New Mexico Supreme Court

On January 25, Julie Vargas was sworn in as a justice on the New Mexico Supreme Court. Gov. Michelle Lujan Grisham (D) appointed Vargas on December 19, 2020, to succeed Justice Judith Nakamura (R), who retired on December 1.

Prior to her appointment, Vargas was a judge on the New Mexico Court of Appeals. She was elected to this position on November 8, 2016.

All five New Mexico Supreme Court justices have been either elected as Democrats or appointed by Democratic governors. Gov. Lujan Grisham has appointed three state supreme court justices, and Chief Justice Michael Vigil and Associate Justice Barbara Vigil (no relation) were elected as Democrats.

Under New Mexico law, state supreme court vacancies are filled through assisted gubernatorial appointment, in which the governor selects a nominee based on recommendations from a judicial nominating commission.

Gubernatorial appointees must stand in a partisan election in the next election cycle to remain on the court. To remain on the bench, Julie Vargas must run for election in 2022. Subsequent terms are acquired in uncontested retention elections wherein sitting justices must receive 57% of the vote to retain their seat

New Mexico is one of seven states that use partisan elections to select state supreme court justices for either initial or subsequent terms. Of those seven states, four—Illinois, New Mexico, North Carolina, and Pennsylvania—have a majority of Democratic justices while three—Alabama, Louisiana, and Texas—have a Republican majority.

Senate Judiciary Committee to vote on Barrett’s Supreme Court nomination Oct. 22

The Senate Judiciary Committee will vote on whether to advance Judge Amy Coney Barrett‘s nomination for consideration before the full Senate. Twenty-two senators currently sit on that committee, including 12 Republicans and 10 Democrats.

President Donald Trump (R) nominated Barrett to the U.S. Supreme Court on Sept. 29 to fill the vacancy caused by the death of Ruth Bader Ginsburg on Sept. 18. Barrett’s confirmation hearings were held Oct. 12 – 15 before the Senate Judiciary Committee. On day one of the hearings, Chairman of the Senate Judiciary Committee Lindsey Graham (R-S.C.) provided opening statements, followed by members of the Senate Judiciary Committee. Sens. Todd Young (R-Ind.) and Mike Braun (R-Ind.) then introduced Barrett. After the introductions, Barrett gave her opening statement. The day ended with Barrett’s introduction to the committee by professor Patricia O’Hara, which was delayed due to technical difficulties during the initial introductions.

Day two of the hearings consisted of senators questioning Barrett for 11 hours, with each senator allotted 30 minutes. Recurring themes in the questioning included abortion, the Affordable Care Act, election disputes, legal access to firearms, and same-sex marriage. On day three of the hearings, senators continued to question Barrett for nearly nine hours—with each senator allotted 20 minutes. Recurring themes in the questioning included abortion, election administration, immigration, and presidential power.

On the fourth and final day of hearings, the Senate Judiciary Committee voted 12-10 to hold a committee vote on Barrett’s nomination. Most Democrats voted by proxy because they did not appear in person. The committee also heard witness testimony. Witnesses in support of Barrett’s confirmation included the American Bar Association, former Judge Thomas Griffith, a law school professor, a former student, and a former mentee and employee of Barrett. Witnesses opposed to Barrett’s confirmation included the president of the Lawyers’ Committee for Civil Rights Under Law, a medical doctor, a small business owner and activist, and a nonprofit leader.

The average vacancy length on the Supreme Court since 1962—when defined as the length of time elapsed between a justice’s departure date and the swearing-in of their successor—is 88 days. Four of these vacancies lasted for only a few hours each; the successor was sworn in the same day the retiring justice officially left office. The longest vacancy under this definition was 422 days, following the death of Justice Antonin Scalia in 2016.

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Michigan board approves circulation of recall petition against state attorney general

The Michigan Board of State Canvassers on October 15 approved the petition language for a recall against Michigan Attorney General Dana Nessel (D). The board previously rejected five recall petitions against Nessel in 2020. Supporters of the recall effort need to submit 1,046,006 signatures within a 60-day period to require a recall election. The 60 days begin on the first day that signatures are collected. The recall petition must be submitted to the office of the Michigan Secretary of State no later than 180 days after it was approved by the board.

The recall petition was submitted by Chad Baase on September 25. Michigan laws state that the reason for recall must be deemed factual and clear by the Board of State Canvassers before the recall petition can be placed in circulation. The board does not document a rationale for their determination, only the judgment of rejected or approved.

The recall petition criticizes Nessel over her announced plans of ramping up efforts to enforce Gov. Gretchen Whitmer’s (D) Executive Order 2020-148. The executive order provided enhanced protections for residents and staff of long-term care facilities during the COVID-19 pandemic.

In 2020, Baase has filed 12 recall petitions against four statewide officials. Five have been approved for circulation, five were rejected in clarity hearings, and two were withdrawn.

Since the COVID-19 pandemic began in March, four statewide officials in Michigan have seen recall petitions submitted against them. In total, 31 recall petitions have targeted the four officials. In comparison, Ballotpedia tracked no recall efforts against any Michigan statewide official in 2019.

This year, Whitmer has had 20 recall petitions submitted against her. Nine of those petitions have been approved for circulation, 10 efforts were rejected, and one effort was withdrawn by the petitioner. Two recall petitions have been introduced against Lt. Gov. Garlin Gilchrist (D). One petition has been approved for circulation, and the other was rejected. Three recall petitions have also been introduced against Secretary of State Jocelyn Benson (D). One effort has been approved for circulation, one effort was withdrawn by the petitioner, and the other was rejected.

Michigan is under a divided government. A state government trifecta exists when one political party simultaneously holds the governor’s office and both state legislative chambers. Republicans control the state Senate by a 22-16 margin and the state House by a 58-51 margin with one vacancy. Whitmer was elected as Michigan’s governor in 2018 with 53.3% of the vote.

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